Another problem the defense would face with any 6th Amendment argument is that this is about a deposition, not trial testimony, and depositions are certainly not required by the Constitution. I wish I could think of reasons the defense might prevail, because I really wish they would.

The only loss is a guilty verdict? Why not cut to the chase and allow the information so that there doesn't have to be another trial?

Anything that is in the (future) deposition is not a guarantee that it will even make into the upcoming trial. If the Prosecution drops W8 as a witness, then Ben Crump's deposition would be a moot point.

Could this just be Defense strategy to pressure the State to drop W8?

"Cut to the chase" takes on a different meaning at the appellate level. The appellate courts have to tolerate error below, lots of error below, or else they'd be swamped with appeals. There is a legitimate process rationale to deny a remedy, even a well deserved remedy, until after the trial has been concluded.

I think O'Mara is making a reasoned public pleading, with complex justification that involves public perception, threat to the prosecutor, threat to Crump, and notice to Nelson that he does not appreciate her games.

Here is the docket for Eutsay v. State showing that the order for a response was framed as a show-cause order. The petition was dismissed. (Eutsay was eventually acquitted, so we'll never know how the discovery issue would have fared on appeal.)

Am I understanding this correctly? The DCA is asking the state (BDLR) to respond? That will be interesting. Is BDLR going to just plagiarize Blackwell's homework or will he actually have to do some research on his own? I wonder if he can consult with Blackwell and/or Crump.

I wonder how much the response will focus on the merits and how much it will focus on dismissing the petition because relief is available on appeal if there's a conviction. If the state wins on the latter (as I've already said I believe they probably will) the former doesn't matter. I won't be surprised if the response is written by someone in the state attorney's office other that BDLR.

I wonder how much the response will focus on the merits and how much it will focus on dismissing the petition because relief is available on appeal if there's a conviction. If the state wins on the latter (as I've already said I believe they probably will) the former doesn't matter. I won't be surprised if the response is written by someone in the state attorney's office other that BDLR.

I think the response will argue both points, similar to the petition arguing 1) Crump isn't opposing counsel, but 2) even if he is ...

Did you see State v. Loano, 616 So.2d 73 (Fl 1st DCA, 1993)? That court carved out an exception to the law, but the remedy was change of venue (not discovery), the state petitioned for reversal of the trial court's order, all parties in the appeal argued in favor of a change of venue for a retrial, and the rationale for not waiting until after the retrial had been completed was that ANY outcome in that trial (assuming venue was not changed) would be seen as wrong, to the extent that a decision might trigger civil unrest.

In light of the intense media coverage of this case, the problems with providing Lozano a fair trial increase with each trial. Further, we are persuaded by the State's argument that it should not be required to prosecute an individual in circumstances which it believes are violative of the defendant's constitutional rights. We agree that public confidence in our criminal justice system cannot be maintained under such circumstances, and that either a conviction or an acquittal resulting from such a trial would be inherently suspect. We therefore conclude petitioner has satisfied the "irreparable injury" requisite to obtain certiorari relief.

The appeals court has wide ranging discretion, and each case stands in its own four corners. O'Mara makes a good case involving public interest, and an appearance of shenanigans in securing the testimony of the state's star witness (which also infers that the testimony itself may be false or misleading).

The state might agree with O'Mara on the issue of deposing Crump. I think that's a slim probability, given the state's attitude toward providing discovery in general, and as to Witness 8 in particular, but the state will also be thinking about whether or not it wants to try this case twice, and whether it wants to argue that defendants in general can be denied fact discovery. On that second factor, assume there is a conviction, and an appeal on this very issue. Will the state want to argue that defendant doesn't have a right to depose a fact witness? If the state is uncomfortable with that argument on a prospective post-trial appeal, then it should be uncomfortable with that argument now, as well.

Am I understanding this correctly? The DCA is asking the state (BDLR) to respond? That will be interesting. Is BDLR going to just plagiarize Blackwell's homework or will he actually have to do some research on his own? I wonder if he can consult with Blackwell and/or Crump.

On that point, the DCA did send a courtesy copy of the order to Mr. Blackwell - as an interested party, I suppose. What are the vehicles for Crump to argue against this petition?

On that point, the DCA did send a courtesy copy of the order to Mr. Blackwell - as an interested party, I suppose. What are the vehicles for Crump to argue against this petition?

Technically, he's an intervenor in the action between the state and Zimmerman. The press has filed numerous motions in the case, arguing for sunlight, but the press is likewise not a party. Similar for witnesses. They are not parties, but they may bring legal baggage of their own to an underlying case - e.g., refusal to testify based on an assertion of privilege.

Crump/Blackwell will want to get their two cents in, and I'm sure the DCA would rather hear from them now, but it is not going to compel them to respond. Assume the DCA grants the relief O'Mara seeks, putting Crump under a court-issued subpoena to testify. He'd want to fight that via appeal, but that opportunity will be behind him, and forever lost. IOW, the DCA will have already ruled that he may be deposed, and will have given legal rationale.

I guess the other question that comes to mind is if the SAO would be more like to respond, or the Florida AG?

Florida AG replied to O'Mara's petition for a Writ of Prohibition against Judge Lester.

The fact that O'Mara is making these filing available is great. The courts are accustomed to hiding behind the wall of obfuscation that the press inevitably creates. Of course some people are always interested enough to read the actual court pronouncements, but that is usually a very small number of people, so the fact that courts are acting foolish isn;t well known by the public.

I think that position is at odds with the Florida supreme court inWilliams v. Oken, 62 So. 3d 1129 (Fla. 2011), which (quoting from another case) explained:

Quote

[T]he phrase "departure from the essential requirements of law" should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.

It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

It isn't clear to me what the court thinks the criteria should be, but it is clear that it doesn't think should be limited "only to violations which effectively deny appellate review."

We voted to en banc this case solely for the purpose of announcing that we do not have a hard and fast rule against reviewing orders denying discovery. It is unnecessary for the full court to consider whether an order to show cause should be issued on this petition, and accordingly further proceedings will be before the original panel, not the entire court.

It isn't clear to me what the court thinks the criteria should be, but it is clear that it doesn't think should be limited "only to violations which effectively deny appellate review."

The absence of clarity makes it easier for the courts rule "on the fly."

STATE v. MARTINEZ, 4 So.3d 712 (Fl 4th DCA, 2009) was discussed in that CTH thread where we met yesterday. In Martinez, the DCA said that the seriousness of the error, alone, was sufficient justification for the DCA to be involved and uphold (if no error) or reverse (if error) the trial court. The question of whether or not the error caused actual prejudice was not part of the calculus.

The failure to address the contents of the conversation in the order and expressly find actual prejudice is not "a violation of a clearly established principle of law resulting in a miscarriage of justice." See Pettis ...

That is different from the formula in Williams V. Oken, "The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice."

IOW, in the Martinez case, the result (miscarriage of justice) was not part of the calculus - that the prosecutor listened in to privileged communication was enough, even if the end result was no improvement in advantage in the trial. Seems to me, the Fl Supreme Court would disagree, and would order the DCA to require a showing of miscarriage of justice.

Anyway, my only point is that are sufficient widgets in the case law to allow an appellate court to pretty much whatever it wants to. The job of the opposing counsel is to try to understand what levers work the court's preferences. I think O'Mara's policy argument is a pretty good one, and it isn't as though the appellate courts are going to be swamped with appeals of this particular nature. Better to nip it in the bud, and not allow the Crump's of the world to abuse the legal process for personal advantage.

The absence of clarity makes it easier for the courts rule "on the fly."

Anyway, my only point is that are sufficient widgets in the case law to allow an appellate court to pretty much whatever it wants to. The job of the opposing counsel is to try to understand what levers work the court's preferences. I think O'Mara's policy argument is a pretty good one, and it isn't as though the appellate courts are going to be swamped with appeals of this particular nature. Better to nip it in the bud, and not allow the Crump's of the world to abuse the legal process for personal advantage.

Yes, the Appellate Court should ask itself if it wants to allow lawyers to induce questionable witness testimony in a criminal case in order to further their goals in a civil case. The adversary system needs some fetters just as the capitalist system does. The Court probably won't go as far as I would want in saying any lawyer who interviews a non-expert, non-client witness in a case outside of a deposition or courtroom setting can be deposed about the circumstances and content of his interview. That should also go for prosecutors.